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Whether Section 436 -A Application Can Be Allowed To A Convict, Pending Appeal? - An Analysis Of Bombay HC Judgment.
The present case, Maksud Sheikh Gaffur Sheikh v. the State of Maharashtra, was filed before the Hon’ble. High Court at Bombay, by the applicant under Section 436 - A of the Code of Criminal Procedure 1973, seeking a grant of bail.
The applicant was one of the six accused charged with offenses committed under Sections 450, 506-II, 326, 452, 366, 354-A, 354-B, 354-C, 376-B, 426, 307, 394, 201, 212 read with Sections 343 and 149 of the Indian Penal Code 1860 and Sections 67 and 67-A of the Information Technology Act, 2000 read with Sections 109 and 114 of the Indian Penal Code, 1860 which was at that moment was pending appeal.
On culmination of the trial of the case against the accused by the Hon’ble. Additional Sessions Judge, Chandrapur, vide judgment dated August 1, 2016, the accused was convicted for a variety of punishments extending from 3 years to10 years imprisonment.
The accused subsequently filed an appeal on the said sentence of conviction awarded to him. While the appeal was pending, the accused initiated an application under Section 389 of the Code of Criminal Procedure 1973, in order to suspend his sentence pending the appeal and prayed for his release on bail. A Division Bench of this very Court rejected the application vide order dated November 18, 2016.
Subsequently, leave was granted to the accused to file a separate bail application on medical considerations, the same also stood dismissed vide order dated January 31, 2017.
Aggrieved by his previous failed attempts at securing bail, the accused has at present initiated this current petition under Section 436 - A of C.r. P.C in hopes of being enlarged on bail.
The Applicant has relied on the precedents of Pradip Vs. The state of Maharashtra, 2019 SCC Online Bom 9768 and Mudassir Hussain and Anr., Vs. State and Anr., 2020 SCC Online J & K 381, and also a few more judgments and has prayed to be enlarged on bail, on the following grounds:
- The accused has remained in custody since 2014 and has thereby spent more than half of the maximum imprisonment awarded to him by the Hon’ble. Sessions Court. He becomes eligible to be released on bail on account of his rights vested under Section 436 - A of the C.r. P.C.
- Section 436 - A being a beneficial provision, ought to be interpreted liberally as that the convict may receive its intended benefits.
- It is the fundamental right of the accused to get a swift trial without unnecessary delays and the purpose of Section 436 - A is to uphold the accused person’s fundamental right irrespective of the applicant being a convict or an under trial prisoner.
- Prima Facie, the contents of Section 436 - A could emerge as being pertinent to only under trials, however, an appeal also falls within the purview of the said provision by virtue of being nothing but a mere addendum to the trial proceedings.
The Counsel appearing on behalf of the State of Maharashtra has relied on the following grounds to dismiss the application preferred by the accused:
- There is no scope of liberally interpreting Section 436 - A as there exists no ambiguity in the meaning or contents of the said provision.
- The criminal proceedings are distinctly segmented into various levels comprising of an investigation, trial, and an appeal. If one were to comprehend this, then it becomes clear that appeal falls under the ambit of Section 436 - A for the purpose of granting bail.
- By means of confining the provision of Section 436 - A to a specific Chapter in the CrPC, it is understood that the legislature had intended to provide a narrow interpretation so as to restrict its application to undertrials.
The current application was listed for hearing before the Division Bench of the Bombay High Court, however, the Division Bench was of the opinion that the application involved matters of general importance which comes up often in criminal cases. Therefore, the application was referred for the consideration of a Full Bench comprising of the Chief Justice of Bombay HC as well as two other Judges that would go on to pass the current judgment.
The issue framed for consideration of the Full Bench was as follows:
- Whether a convict who has challenged his conviction under Section 374 of the Code of Criminal Procedure, 1973 is entitled to the benefit available under Section 436 - A of the Code of Criminal Procedure?
The Hon’ble. High Court, in its judgment, has concurred with the contention that Section 436- A is both beneficial as well as the remedial provision of the law. By this means, the said provision becomes eligible for liberal interpretation and application. However, after complete consideration of the entire Section 436 –A, the honourable Justices came to the conclusion that the said provision can only be restricted to undertrials.
It was held that the term ‘trial’ used in Section 436 - A, cannot refer to appeal proceedings as the application of the said term has been restricted to the only proceeding of original jurisdiction within the Code. Further, it was held that a trial is said to have been culminated at the time of passing the judgment by the relevant Court conducting the trial. In the event of a judgment of conviction, a convict cannot take the recourse of Section 436- A to overrule the judgment and secure bail for himself. The only remedy for securing bail by a convict pending appeal is Section 389 of the Code, and the same having been rejected by this Court, the accused’s application for bail under Section 436 - A holds no merit.
As a result, the application to be enlarged on bail by the accused pending appeal was accordingly dismissed by the Bombay High Court.
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